A Military Christmas Poem

The embers glowed softly, and in their dim light, I gazed round the room and I cherished the sight. My wife was asleep, her head on my chest, My daughter beside me, angelic in rest.

Outside the snow fell, a blanket of white, Transforming the yard to a winter delight. The sparkling lights in the tree I believe, Completed the magic that was Christmas Eve.

My eyelids were heavy, my breathing was deep, Secure and surrounded by love I would sleep. In perfect contentment, or so it would seem, So I slumbered, perhaps I started to dream.

The sound wasn't loud, and it wasn't too near, But I opened my eyes when it tickled my ear. Perhaps just a cough, I didn't quite know, Then the sure sound of footsteps outside in the snow.

My soul gave a tremble, I struggled to hear, And I crept to the door just to see who was near. Standing out in the cold and the dark of the night, A lone figure stood, his face weary and tight.

A soldier, I puzzled, some twenty years old, Perhaps a Marine, huddled here in the cold. Alone in the dark, he looked up and smiled, Standing watch over me, and my wife and my child.

"What are you doing?" I asked without fear, "Come in this moment, it's freezing out here! Put down your pack, brush the snow from your sleeve, You should be at home on a cold Christmas Eve!" For barely a moment I saw his eyes shift, Away from the cold and the snow blown in drifts. To the window that danced with a warm fire's light Then he sighed and he said "It’s really all right, I'm out here by choice. I'm here every night."

"It's my duty to stand at the front of the line, That separates you from the darkest of times. No one had to ask or beg or implore me, I'm proud to stand here like my fathers before me. My Gramps died at ' Pearl on a day in December," Then he sighed, "That's a Christmas 'Gram always remembers." My dad stood his watch in the jungles of ' Nam ', And now it is my turn and so, here I am. I've not seen my own son in more than a while, But my wife sends me pictures, he's sure got her smile.

Then he bent and he carefully pulled from his bag, The red, white, and blue... an American flag. I can live through the cold and the being alone, Away from my family, my house and my home.

I can stand at my post through the rain and the sleet, I can sleep in a foxhole with little to eat. I can carry the weight of killing another, Or lay down my life with my sister and brother. Who stand at the front against any and all, To ensure for all time that this flag will not fall." "So go back inside," he said, "harbor no fright, Your family is waiting and I'll be all right."

"But isn't there something I can do, at the least, "Give you money," I asked, "or prepare you a feast? It seems all too little for all that you've done, For being away from your wife and your son."

Then his eye welled a tear that held no regret, "Just tell us you love us, and never forget. To fight for our rights back home while we're gone, To stand your own watch, no matter how long. For when we come home, either standing or dead, To know you remember we fought and we bled. Is payment enough, and with that we will trust, That we mattered to you as you mattered to us."

Blame it on the Gun Show

Take a family from Southwest Florida. They decide to spend their morning at a Southwest Florida family attraction. Father decides to carry a Glock.

While the family is enjoying themselves, Father bends over and accidentally introduces his firearm to the other visitors. A manager-type sees this and approaches the man. One report says that Father was asked to secure his firearm in his car and return to enjoy the day with his family. Another report has the manager-type telling Father to leave. In both cases the manager-type is able to describe the Glock, and informs father that there are families with young children around and his display was inappropriate.

Father has already acted in an irresponsible manner by allowing his concealed firearm to be seen, but he is just getting started.

Rather than just listen to the manager-type, Father and Mother “know their rights” (Good Lord), and he refuses to leave. A little while later a Law Enforcement Officer is brought in. Officer Friendly then asks the man if he is armed. Yes. Does Father have the proper credentials? Yes. Did Father allow his firearm to become a public matter? Yes. Hmm.

Officer Friendly asks again that Father leave. Now Father is getting angry. Father tells Officer Friendly that he doesn’t have to leave, and there is nothing Officer Friendly can do. Nice.

(Jingle, jingle, clink) [That’s the sound of hand cuffs. We’re big on sound effects here.]

Father is arrested, booked and charged.

Seems Father is now telling Officer Friendly, and anyone else that will listen to him, that he wasn’t aware of the law. He took his class at the gun show, and the instructor never said anything. Right.

Hillsborough County Ordinance 08-17 & Concealed Carry

Hillsborough County responds.

No Planes, No Trains, Just Automobiles – and Just Handguns

Okay, not really just automobiles, vans and boats too. Planes and trains will be addressed later.

I hear it all the time, "I can keep a concealed handgun in my car without a permit?" Heck yes. Your conveyance is considered an extension of your home. You don’t need a License to Carry a Concealed Weapon or Firearm there either.

I get a kick about just how many people don’t understand this law. It really isn’t complicated. To make life simple, I’m going to use the term “car”, but if you have a truck, van, boat, or motorcycle, this means you too. All of these are considered “private conveyances”. A bicycle doesn’t count.

If you don’t have a License to Carry a Concealed Weapon or Firearm, you should go get one. In the meantime, you are allowed to travel with a loaded firearm in your car if you keep it securely encased. You are allowed to keep it in a glove box or center console if the lid closes and stays closed on its own with a latch. It doesn’t need to lock (unless you have kids).

You can keep the firearm under your seat if you keep it in a holster with a thumb-snap, which is a personal favorite. You can keep it in a briefcase, purse, or anything similar. A garment bag or paper bag doesn’t qualify since you can still shoot the firearm without opening the bag. The law wants you to first remove, or at least open the bag and THEN discharge it. A shoebox may qualify, but that’s stupid. There are other options as well, but we can play that game for hours.

Use a bag or container that stays closed using a zipper (gun bag), Velcro (gun bag), flap with a clasp (holster), As always, I recommend you spend a few bucks and get something of decent quality and designed to hold a gun, although a purse or briefcase are both fine. If something happens, you want to be perceived as a firearms professional and they don’t use old Buster Brown shoe boxes, do they? Remember that just because something is legal doesn't make it a good idea.

Now without exaggeration I hear about the three-step rule at least once a week, and it still makes me laugh. It comes up regularly in my lectures or when talking to a client. People even seem surprised when I explain the law directly to them. Even my own bankruptcy paralegal didn’t know the rule and he works for me! Maybe I should rethink that hire. Anyway, I digress….

The three step rule, which is a load of crap, is that the gun can be kept anywhere providing you need to conduct three separate steps in order to get to the gun. Nonsense. Maybe we can also go to the replay booth to see if you also made a “football move” once you secured the gun. This law reminds me of the Skunk Ape. People talk about it all the time, but no one has ever really seen it first hand. I don’t know who started this three-step rule foolishness, but we need to forget it. If the gun is securely encased, you are good to go.

I really appreciate the idea of securing a holster to the left wall of a center console. The firearm slides in nicely and stays put, then the lid closes. When needed, it mimics a strong-side draw. There is uniformity in training when you practice, and this assists in muscle memory. It is important to practice your draw regularly. "You will not rise to the occasion, you will default to your level of training." Put some snap caps into the firearm and practice drawing from the console, or the glove box, or wherever you keep it.

If the secure case is not secure itself, you may find yourself adding a step as you remove the casing from the firearm. Where you keep your firearm is important. Think this through some. You pull up to a red light. Your gun is in your glove box. You reach for the gun, your right foot slips off the brake, you move forward.

Now if you have kids, they can’t be left in the car on their own unless the lid locks – and locks well because we NEVER leave kids alone anywhere they can get to a firearm. Once the gun is ready to be securely encased, it can be loaded and secured, and you are good to go.

One common error is made when an otherwise responsible, thinking, professional keeps their firearm in their purse, man bag, tactical bag, briefcase, or fanny pack. They get pulled over and forget that they can’t have the gun outside of their conveyance, loaded and concealed, without a License to carry a Concealed Weapon or Firearm. Oops. Leave it in the car if you get pulled over and you are asked to get out. This also means that while you are in your car, you cannot wear the gun in any manner at all.

Another common error that can result in custom ventilation by the police officer that pulls you over is if you forget that it is stupid to keep your firearm in the same place that you keep your registration and proof of insurance. Imagine Officer Friendly coming up to your car. It’s dark. He asks for your license, registration and insurance. You reach over into your glove box, flip the latch, the little light comes on and out slides a gun. You are now looking down the business end of a service weapon, and for good reason. Firearms professionals don’t make these kinds of errors. They are always aware of where their weapons are.

Now this leads us to the inevitable question, which once answered will end this chapter. Do I tell the officer that I have a gun in the car when he approaches? If Officer Friendly asks, by law you MUST tell the truth and let the officer know you have a gun. This being said, whether or not you should tell the officer you are armed in advance of being asked is a choice only you can make. Unless the officer asks, you have no legal obligation to disclose the information.

For years I’ve advised people to do what I did (note “did” is in the past tense), which was to have both hands on the steeling wheel with my Driver’s License, License to Carry a Concealed Weapon or Firearm, registration and proof of insurance in my left hand. Window open and once Officer Friendly came up to me, I told her that I have a License to Carry a Concealed Weapon or Firearm, a concealed firearm, and where it was.

A recent event with a poorly trained Officer Friendly put a prompt to that practice. To recap, if you wish to disclose the information upfront, that is your call. If you only want to disclose it is Officer Friendly asks, that is fine. Remember that if Officer Friendly does ask, you must tell the truth. As an aside, if the conversation isn’t going well, or it appears that Officer Friendly does not know what the law is, ask for a Supervisor.

Once the police officer learns you have a gun, he will likely ask you to step out of the car so he can get it himself. He will ask for the location of the firearm, and you will tell him. He should take the firearm to his patrol car, and secure it inside. If he unloads the firearm and sets the weapon and ammunition on the hood of his car, ask for a supervisor. Once his business with you is done, he should return the unloaded, open, firearm to you. He will walk away and then return with your ammunition. You are now free to leave.

Remember that most police officers in Florida receive only six months training. They may have been getting coffee when the chapter on guns in cars came up. Police Officers are not attorneys and are no more qualified to give you legal advice than your barber. They may not know the law themselves, so when you think you are correct and the police officer is mistaken, ask her to call for a supervisor. This request must be accommodated. It may take time, but I think it’s worth the wait.

Two more political subdivisions agree, and the law is being altered to accomodate the state statute. This helps prevent confusion by the public and law enforcement.

A Brief Inquiry into the Nature of a Self-Defense Case, Part II

A Self-Defense case occurs when the party that would otherwise be a victim, possibly dead and most certainly hurt is now the defendant due to the actions of Self-defense.

The man that signed the complaint is the scumbag attacker that wanted to rob, rape, injure, or kill the defendant. Had the scumbag attacker succeeded in his plans, he would have been the defendant assuming he was ever caught.

In these cases, the defendant is the good girl and the complainant is the bad guy. The State Attorney’s Office will do it’s best to show the defendant as the bad girl.

Since I am not a criminal defense attorney, I prefer to refer to the defendant as the “victim” or “surviving victim”. I use these terms interchangeably as they may best fit into this inquiry.

Because it is the responsibility of the victim to provide the court with evidence on each element of Self-Defense, it is imperative that her attorney provide this evidence in its proper light and be prepared to write proper jury instructions. This is very time consuming.

Assuming deadly force was employed by the victim, her attorney must be able to show that a reasonable person, in the same circumstances, would have believed that there was an immediate threat of death or imminent bodily injury. Here it is important to remind everyone that use of a firearm does not require discharge. One can “use” their gun to persuade the scumbag attacker to retreat and find a softer target without every firing a shot.

Our courts have recently reminded us that the victim did not have to experience fear, but only that a reasonable person would have believed that there was an immediate threat of death or imminent bodily injury. In fact, the victim could have just cleaned and lubricated her gun, left a self-defense class, and completed a half hours worth of dry-fire training. Scumbag attacker makes his move; the victim in turn is at the top of her game and reacts appropriately. Fear may never have entered her mind, but that is a non-issue.

Florida law does provide for immunity from prosecution when self-defense is employed. Sadly, many of our courts don’t understand what this means. It is the responsibility of the state to prove its case “beyond a reasonable doubt”. However, the standard used in a hearing to determine whether self-defense immunity attaches is only “by a preponderance of the evidence”. If you are interested in the difference between the two, look it up, that is beyond the scope of this inquiry.

So we now know that the evidentiary hearing to determine whether or not self-defense was employed can trigger immunity, which in turn will end a criminal or civil case. Important stuff, yes? This is why it is so important that before the victim was attacked, she had a heightened sense of situational awareness. She knew who was around her, what was around her. After the shooting she was able to give law enforcement some important information about who may have witnessed the failed attack; and she can tell her attorney that a Fed-Ex truck was across the street, and the local hardware store was closing. She knows where her empty cartridges landed, and can help establish that when law enforcement hit the scene, it is probably that they unknowingly disrupted the crime scene.

Scumbag attacker’s gun is gone, but so is the blue Ford pickup that sped away soon after scumbag attacker yelled something. Since we know that scumbag attacker fired a shot, the police must have tested for residue. Our victim will be able to show that she didn’t accelerate the condition by inserting her two-cents into an argument between a couple in the parking lot, and therefore lending question as to whether or not she may have acted as an aggressor herself.

Our team of good guys will be able to reconstruct the crime scene to show that due to the distance between the rapidly approaching, and armed attacker, if the victim had waited another ½ second to engage, she would have been severely injured or dead. Due to the disparity of the scumbag attacker and the surviving victim, she used an appropriate amount of force and did not employ excessive force. Her expert witnesses will testify that her actions were appropriate, and why she was trained in this manner.

While our victim was armed, she was not armed because she knew that this confrontation was going to happen. She would not have avoided going to this part of town if she couldn’t find her gun. She is able to provide testimony that her behavior prior to the attack was identical to her behavior the week prior if this was a routine errand. If her gun is usually carried without a round in the chamber, there was no difference this day.

If the court determines she acted in Self-Defense, immunity will attach and this nightmare ends. If not, she must determine if she will appeal or move onto trial.

Hillsborough County Parks. Ordinance No. 08-17

A Letter to the Hillsborough County Board of Commissioners (9/9/2009):

Dear Commissioners,

I have recently been asked for an opinion as to whether a visitor to a Hillsborough County Park can carry a concealed firearm while on park grounds given the prohibition set forth in Ordinance No. 08-17. Since this opinion concerns a resident of Hillsborough County, I thought it best to share the results of my research with you.

The ordinance in question states, in pertinent part that “No person, except Law Enforcement Officers, shall carry, possess, or use firearms of any type within the Parks or Park Property.” While I am uncertain why the County would pass an ordinance preventing a mother from trying to legally carry a firearm in a public park, unless this ordinance has been subsequently revoked, it does appear to be a problem since Florida is a “Preemption State” and it’s counties and cities are not permitted to maintain their own firearm’s laws.

Section 790.33, Florida Statutes states that the legislature occupies the whole field of firearm regulation, including possession, to the exclusion of all existing and future county, city, or municipal ordinances or regulations, and any such existing ordinances are hereby void. The statute further reads that it is the intent of the statute to provide uniform laws in the state of Florida, to declare all ordinances and regulations null and void which have been enacted by any other jurisdiction other than state and federal.

Since the Florida Constitution states that political subdivisions cannot maintain laws that conflict with state law, I’ve concluded this prohibition against lawfully concealed firearms in county parks to be null and void.

So it appears that if someone is properly concealing her firearm, and has her valid Drivers License and License to Carry a Concealed Weapon or Firearm, that she is within her rights and within the law.

State law does prohibit concealed firearms in many locations such as jails, police departments, schools, bus stops, polling places, and any government facility where a meeting of a county commission, city council, school board, water management, or special district is taking place. Public parks are not one of Florida’s prohibited places.

If you are relying on another authority that I have not considered, please advise. Otherwise, I will be advising my clients accordingly so that they can protect themselves and their loved ones without the threat of criminal prosecution for legally carrying concealed firearms in Hillsborough County parks.

I hope that the county does not maintain any signs at park entrances that misrepresent the current state of the legal order with respect to this issue, and if there are, that they can be modified or removed promptly.

Regards,
J. Patrick Buckley III, Esq.

HairDo’s and Don’ts

We need to have a chat about Hair. No, not the shaggy bob and I’m not talking about structured layers. My wife is wonderfully low maintenance and never bothers me with such nonsense, and I have three sons so such conversations are never overheard in our house. Who would ever listen to my advice on that topic anyhow?

And we’re sure not talking about the musical or movie. Never saw either, have no plans to.

We need to talk about the recent First District Court of Appeals decision, of Jimmy Hair v. State of Florida. Understand at the time of this post the time for a rehearing has not yet expired so it’s not final. Still, I’ve received too many calls, and heard of too many people talking about “Florida’s new law that says you can shoot an attacker even if he tried to escape.” It’s not the case. Let’s talk about Hair.

First the players, Jimmy Hair is the victim of the attack and the party claiming self-defense. Rony Germinal is Jimmy Hair’s friend.

Charles Harper is the attacker and Frye is Harper’s buddy.

The men went to a nightclub on the evening of July 20, 2007. Germinal and Harper exchanged some harsh words. Later that night, Germinal and Hair left the nightclub. Germinal was driving the car and hair was in the front passenger seat.

Harper was nearby and the men exchanged words. Harper walked over to the car occupied by Hair and Germinal and got in, but was being pulled away from the car by Frye. Harper was able to get away from Frye and got back into the car on the driver’s side. Hair had both a License to carry a Concealed Weapon, and a handgun under his seat. Hair and Harper fought in the car. When Frye tried to pull Harper out of the car again, Hair shot and killed him.

Hair claims he was attempting to use the gun as a blunt instrument to strike Harper when the handgun discharged.

Hair is arrested and being charged with first-degree murder. Fast forward to Hair’s murder trial. Hair is claiming that he is immune from prosecution under section 776.032(1), Florida Statutes (2007). The District Court of Appeals agrees in an unanimous opinion and orders Hair’s release.

At trial Hair motioned the Court for a dismissal claiming immunity. After reviewing the evidence in a hearing on the issue, the trial Court denied the motion stating that statutory immunity is irrelevant where the defendant (in our case the victim) was attempting to use the weapon as a club when it “accidentally” went off. Now we know in self-defense cases that the victim must acknowledge that the use of force was intentional, and not an accident. This is most likely what the trial Court was thinking as well.

Now we go to Section 776.032(1), Florida Statutes. The law says that a person using force as permitted in Section 776.013, with some exceptions not applicable in this case is immune from criminal action and civil prosecution.

The “Stand Your Ground” immunity claim is resolved by the trial Court following a pretrial evidentiary hearing. It is the defendant’s (victim’s) burden to prove entitlement to the statutory immunity by a preponderance of the evidence. The appeals Court concluded the trial Court made an error in a conclusion of law.

The following facts were not in dispute: The following facts of this case are not in dispute: The attacker had unlawfully and forcibly entered a vehicle occupied by the victim. While the attacker may have been being pulled out of the vehicle at the time of the shooting, the action was involuntary if it occurred at all. The physical evidence was clear that the attacker was still inside the vehicle when he was shot. The Court then stated that the statute makes no exception from the immunity when the attacker is in retreat at the time the defensive force is employed.

Since the statute makes no exceptions from immunity when the attacker is in retreat at the time the defensive force is employed, the appeals Court found statutory immunity was appropriate, and the motion to dismiss should have been granted.

The appeals Court reasoned that since the victim knew the attacker was in the car unlawfully and used force to get into the car when he was shot, the use of defensive force intended or likely to cause death or great bodily harm was immune from prosecution.

This case is subject to a motion for rehearing.

This case may be appealed to the Florida Supreme Court.

This case is very fact specific, and even if it remains good law, unless you are in the 1st DCA’s region, and find yourself in an identical position, using force against someone trying to retreat or otherwise remove themselves from the confrontation may be a problem.

Use of deadly force against an attacker trying to retreat is not recommended. There is always the chance that the retreating attacker may simply turn to attack again, but in this case the attacker was still essentially facing the victim, so the victim was not shot in the back.

It is good to have this case in the books, but it should not be relied upon for a measured outcome.

This is important since some in the media are already saying there is a “new law in Florida” and it is legal to shoot an attacker trying to retreat. No, that’s not the law. Be careful.

A Brief inquiry into the nature of a self-defense case, Part I

“It is well settled that, if a man is attacked, he has a right to defend himself. If the attack is of such nature as to create a reasonable apprehension of great bodily harm, and he acts under such apprehension, and in the reasonable belief that no other means will prevent harm, he has the right to kill the assailant.” – Unknown Judge. Cir. 1800

The basic elements required to maintain a self-defense case include:

The victim had a reasonable belief that she was in imminent danger of great bodily harm or death.

The victim believed that she, or a third party, was in such imminent danger that the victim could only save herself, or the third party, through the use of deadly force.

The victim used no more force than was needed under the circumstances.

The victim acknowledges that her use of force was intentional, and not an accident.

The victim was not the initial aggressor, nor injected herself into the situation raising the aggression.

Height, weight, and physique of both the victim and attacker are considered. If the victim is smaller, lighter, frailer, or weaker than the attacker, the attackers’ body may provide a sufficient weapons’ threat against the victim. The greater the disparity of force, the easier it is to justify a response.

It is unnecessary that an armed attacker have his gun aimed at the victim for the victim to respond to a threat. If the victim sees a firearm in the waistband of the attacker, the victim may respond since an untrained attacker can draw a gun and shoot in less than one second.

Displaying a firearm as a deterrent against a threat constitutes use of a firearm, but like a warning shot is unwise.

A victim is in the best position if she uses a firearm and ammunition similar to that used by law enforcement. Heavily altered firearms and reloads can be a problem. The law abiding citizen uses factory self-defense ammunition.

A quality holster is beneficial. Resist carrying a handgun without a holster.

To be continued.....

Can you now kill a retreating attacker? Maybe!

For those of us that have taken classes or studied Use of Force, we know it is generally the case that when an attacker is retreating, it is unlawful to use deadly force against the attacker. Instead, we should just let the guy go and report the attack to the police. Now it seems someone used deadly force against their attacker, and while they are claiming that the gun went off accidentally (Yea, right!), although the trial court didn’t buy their argument, the appeals court did.

Please understand that I do not recommend that you use deadly force against someone that is trying to escape. This being stated, the court ruled it lawful in this situation and we are reporting the decision. It’s always possible that this ruling will be overturned.

The First District Court of Appeals published a unanimous opinion today declaring that should a person legally use deadly force, in self-defense, against an attacker that is possibly retreating, that person is immune from prosecution under Section 776.032(1) Florida Statute.

In this case the attacker unlawfully entered the victim’s car. The attacker’s acquaintance tried to remove the attacker from the car when a fight broke out in the car. The victim had a concealed handgun under his seat, and a License to Carry a Concealed Weapon or Firearm. As the attacker’s friend tried to remove the attacker from the victim’s car, the victim shot the attacker. The victim contends he was only trying to strike the attacker with the gun, and it accidentally discharged. The attacker died.

The trial court ruled that statutory immunity was irrelevant in matters where the victim was attempting to use a firearm as a “club” and it accidentally discharged. Since the court found there were disputed issues of material fact, pretrial immunity could not be granted.

The First District Court of Appeals addressed the “Stand Your Ground” law in the 2008 case of Peterson v. State, where it analyzed sections 776.013 through 776.032, Florida Statutes. Section 776.013(1) states,

(1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:

(a) The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person's will from the dwelling, residence, or occupied vehicle; and

(b) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.

The following facts of this case are not in dispute: The attacker had unlawfully and forcibly entered a vehicle occupied by the victim. While the attacker may have been being pulled out of the vehicle at the time of the shooting, the action was involuntary if it occurred at all. The physical evidence was clear that the attacker was still inside the vehicle when he was shot. The Court then stated that the statute makes no exception from the immunity when the attacker is in retreat at the time the defensive force is employed.

Once again, the statute makes no exception from the immunity when the attacker is in retreat at the time the defensive force is employed.

The victim was aware that the attacker had unlawfully and forcibly entered the vehicle when he was shot. The victim was therefore authorized by section 776.013(1), Florida Statutes, to use defensive force intended or likely to cause death or great bodily harm and was immune from prosecution for that action under 776.032(1).

The Attorney General’s Office seems to disagree with this ruling. The ruling was unanimous, and I’ll be surprised if the Florida Supreme Court changes the ruling.

In the meantime, tread carefully with this one. I do not recommend that you use deadly force against someone that is retreating.

Sanibel Island & LEE COUNTY Agree on Concealed Carry

Following a letter I sent to the Mayor concerning this sign, the issue was given to the City Attorney. I spoke with him briefly today and he agrees that Florida is a Preemption State and that the City of Sanibel Island is unable to restrict the possession of legally concealed firearms on a public beach.

The following letter was received today from The Lee County Interim Manager. It certainly appears Lee County is resolving the situation as well.

________________________________________________

(239) 533-2221


August 13, 2009



Via E-Mail Only: (Buckley@JPBEsq.com)

J. Patrick Buckley III, Esq.
The Law Offices of J. Patrick Buckley III and Associates
Key West Professional Centre
1342 Colonial Blvd., Suite H-60
Fort Myers, Florida 33907


RE: Bowman’s Beach, Sanibel, Florida


Dear Mr. Buckley:

Thank you for your letter of July 21, 2009, pertaining to the signs on Bowman’s Beach relating to firearms. We agree with your assessment that the State of Florida preempts the regulation of firearms exclusively to the state, and we’re aware that the signs need to be removed. Lee County Parks and Recreation Department is working on having the signs removed and/or the reference to firearms deleted.

In spite of the issue with the sign we hope that you enjoyed your time at Bowman’s Beach.

Sincerely,




Karen Hawes
Interim County Manager



xc: Judith Zimomra, City Manager, City of Sanibel
Andrea Fraser, Deputy County Attorney

Via E-Mail Only:
Board of County Commissioners
Barbara Manzo, Director, Parks and Recreation
Jed R. Schneck, Assistant County Attorney

___________________________________________________

Just who should you listen to?

http://www.naplesnews.com/news/2009/jun/16/widow-pulls-pink-pistol-handyman-she-believes-was-/

NAPLES — With her pacemaker and frail body, few would describe Christa Taft-Mueller as an intimidating woman.

But the 69-year-old widow is no pushover when she’s packing her pink-handled Walther P22 semi-automatic handgun. Just ask a local handyman.

On Monday afternoon, Taft-Mueller pulled the gun on a handyman who was supposed to be repairing the pocket door leading to her bedroom, but who she says she found arched over her jewelry box.

“My hands were shaking so much,” Taft-Mueller said in her German accent. “And the guy said, ‘Is that pistol loaded?’ I said, ‘Of course it is. It’s ready for you. It’s ready for you, honey.’”
The handyman, whose name is not being released by the Collier County Sheriff’s Office, said he was only looking for an outlet to plug in a tool. He was not charged with a crime because the Sheriff’s Office said nothing was missing from Taft-Mueller’s jewelry box.

“There was no evidence that a crime occurred,” Sheriff’s Office spokeswoman Michelle Batten said.

Rob Gardner, vice president of Orlando-based Handyman Connection, said he trusts the handyman wasn’t attempting to steal anything. Gardner’s company has employed the handyman since 2006 without incident, he said.

“I think it was just an honest mistake on her part,” Gardner said.
Taft-Mueller couldn’t disagree more.

Since her husband died of cancer last September, Taft-Mueller has relied on hired handymen to fix things around her East Naples home on Moon Lake Drive. After the sliding door to her bedroom fell off the track recently, she called Handyman Connection, a company she’s hired maybe a half-dozen times before.

When the handyman arrived around 1 p.m. on Monday, Taft-Mueller said he went right to work on the door. She grew suspicious, however, when she said he closed the door and was alone in her bedroom for about five minutes.

Taft-Mueller said that when she opened the door to check on the handyman, he was bent over the jewelry box on top of her night stand. The handyman said it was all a mistake, and that he was only looking for an outlet to plug in a light inside her dark bedroom, according to a Sheriff’s Office report.

If that was the case, Taft-Mueller questioned why he didn’t use the outlet on the side wall next to the night stand, or one of the three outlets within a few feet of the door he was repairing.
“He said, ‘I’m looking for an outlet.’ I said, ‘In my jewelry box?’” Taft-Mueller said. “I started trembling and I got real scared that he was a thief.”

When the handyman went out to his truck, Taft-Mueller called the Sheriff’s Office and found her loaded pink pistol in her bedroom.

“It’s kind of like a lady’s gun,” Taft-Mueller said. “A guy wouldn’t want to own a gun that is pink. He would want something that’s blue and black and brown. Not a pink one. That would be sissy.”
When the handyman came back inside, she held him at gunpoint.

“I said, ‘You (expletive), you’re not going anyplace,’” Taft-Mueller said.

The Sheriff’s Office dispatcher told Taft-Mueller to put the gun down, and told both her and the handyman to go outside to wait for responding deputies. She was hospitalized briefly because her chest was tight and she was having a hard time breathing after the encounter.

So, what did she do wrong?

We are taught that we should listen to authority figures, and in most instances we must obey the commands of law enforcement officers. In this case Ms. Taft-Mueller listened to the dispatcher. Here everything ended well. Had the deputy arrived at her property and found her in poor condition, the victim of an attack, then what?

Police dispatchers are well-trained in many areas, but it is unwise to take commands from them if you reasonably believe that you are in jeopardy of death or imminent bodily injury. She easily could have waited for the deputy to arrive, and the deputy could have given appropriate instructions.

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Chemical Weapons

No, not Weapons of Mass Destruction.

Chemical weapons such as pepper spray or Mace are an excellent option, and should be included in your "Tool Box" of self-defense alternatives. They generally come in a can and have a few ounces of active agent. Providing the chemical weapon you select does not exceed two ounces of active chemical, you are free to carry concealed or open. A License to Carry a Concealed Weapon or Firearm is not needed. The propellant chemical is not considered an active ingredient.

Be careful if it is windy. When conditions are poor, like rain or wind, I don't consider pepper spray to be an viable alternative Go to your next tool.

If it is a nice day (aside for the attacker), engage the bad guy with the can, but be sure you aim for the attacker's face. You will need to be within range. Your weapon will provide instructions concerning distance. The chemical is not acid. It will not eat through the attacker's clothing. Hit him in the eyes. Feel free to apply liberally, most cans have multiple shots available. A few coats are probably wise and warranted.

I don't care much for the pepper spray key chains unless there is no alternative. I prefer a larger can on the belt or in a pocket. This can be carried in the hand and ready to discharge at any moment. Should someone confront you, get too close, refuse to stop or back off, let them have it. I've never heard of anyone being charged with improper discharge of pepper spray, nor have I ever heard of a civil suit resulting from discharge of pepper spray.

Now when it comes to chemical weapons, IGNORE the law. That's right. I said it. Ignore the law. The law does not prohibit you from carrying pepper spray into a Courthouse. Ignore it, you are asking for trouble. Treat pepper spray, or your chemical weapon of choice, much like you would a gun. This mind set will serve you well. I think it was an error that the legislature did not prohibit chemical weapons in a Courthouse, and I certainly hope security stops everyone carrying it.

I also think it is a great idea to have a chemical option available to you in your car. Mind you that heat may weaken the spray. Read the manufacturers suggestions closely. Cars in Florida get hot, so you may need to replace your can more frequently than you replace your carry spray.

Consider having a chemical option close to your front door. Go ahead and attach the spray's carry case right on the wall by the door, or on the door. If there are kids in the house you may wish to reconsider this option, or mount it high so kids can't get to it.

I find it funny when people think these chemical weapons are "girly". This stuff is effective, and no one gets killed. Sounds like a great alternative to me. Now if you are a man, and you get the pink carry case, well, all bets are off. I may have some fun at your expense.

"Stopping Power!" Or is it, "Stopping Power?"

When considering stopping power, first ask yourself how you define it. Does it mean that the bad guy explodes? Maybe he just stops dead in his tracks? Does it mean he's alive, but not capable of causing harm to you or anyone else? I've read some of those ballistic tests. I think the best examples of stopping power are the statistics from those tests, stops me from ever wanting to read another article about ballistics tests again. I've seen the pictures and videos of what the cartridge will do to a block of gelatin, and am certain really of only one thing, if a plastic jug water ever attacks me, it had better watch out!

Like you, I've sat around gun stores listening to customers try to impress the gun store’s employees with their infinite knowledge on the issue, yet when I ask them what stopping power means, even the guy that pretends to have worked for Blackwater has little to say. And yes, we are onto you. So what does Stopping Power mean? I'm still not sure.

I do know this, unlike what you have been taught in your basic gun course, the truth is that any handgun cartridge is capable of providing "one shot, one kill" with proper shot placement and that any handgun cartridge will be woefully ineffective with poor shot placement. This means, that a round as small as a .32 can stop many attackers. Likewise, a poorly placed .41 magnum may do little damage, if any.

Although it is not ideal for self defense, a .32 caliber round will stop your average nut case if you shoot him through his eye into his brain. The same man may not even notice when grazed in the shoulder with that .41 magnum cartridge. Therefore, shot placement is the single most crucial component when determining the factors involved in terminating a hostile threat. Having said this, the odds of me being able to shoot a moving bad guy in the eye at 10 yards with a .32 Kel-Tec aren't good. So we do the best with what we have. Your muzzle should initially be focused on the bad guy's chest -- center mass. Two shots to the attacker's thoracic cavity is a good, effective way to begin a self-defense shooting. Rumor has it he won't explode, but it's still a good start.

Another popular misconception is that the shooter expects a single cartridge to be effective against an armed adversary. This is dangerous and could get someone killed. Again, unless your attacker has a habit of exploding when shot, even the most powerful combat cartridge will not guarantee an immediate stop. Keep shooting until the bastard is down. Your enemy is your enemy until he's dead.

Here's the problem, the handgun cartridge is grossly underpowered compared to a shotgun shell, or rifle cartridge. If only we were allowed to carry concealed shotguns and rifles. Until we can, we need to settle for our handguns -- first two shots delivered as quickly as possible while maintaining accuracy. Shoot twice at center mass then quickly determine if the threat still exists. If the threat is not terminated, muzzle to the head and deliver two shots. This does not mean you walk up to the bad guy to deliver the third and fourth blows. Remain where you are. Stay a safe distance away. By training to shoot twice every time you engage a target, a standard response develops that enables the quick and accurate delivery of two hits when shooting to defend your life. Good stuff, and once your muscle memory maintains the movement, you are increasing your skill set big time.

When choosing a cartridge, there is plenty of literature comparing calibers, the projectile's design, weight, velocities, and just about everything else you can think of to keep you busy for months. These conversations are great between gun guys, but was that the extra couple of hundred feet per second really dispositive of the gun fight? Unlikely. I suggest you select a cartridge that has a large cross sectional bullet diameter (this is what is meant by “caliber” and this directly relates to the amount of damage the bullet will inflict by damaging tissue) and as heavy a bullet weight as possible (measured in “grains”). Load as hot a round as you can effectively control. The weight and velocity of the bullet effects penetration and this determines how much internal damage it will cause. Therefore, the larger the caliber, heavier the bullet, and faster the velocity, the greater the tissue damage, the greater the odds the bad guy stops.

There’s an old joke, A Texas Ranger is asked why he carries a .45. He replies, "They don’t make a .46”.

Many hand gunners think that a fully loaded, large caliber pistol cartridge, such as the .45 ACP (Auto Cartridge Pistol) is too difficult to control. Excessive recoil when shooting a handgun chambered in .45 ACP may be due to poor handling rather than high cartridge power. An average man with proper grip and a stable stance will have effective control of the muzzle enabling target reacquisition. I recommend that you shoot the heaviest bullet and the largest caliber that is loaded as hot as you can control and discharge two accurate shots, center mass, in the quickest amount of time possible. It’s placement that does the damage, not just the round. A Navy SEAL with my .32 is far deadlier than a blind man with my .50 Action Express.

Where can I go? More importantly, where can’t I go?

Get this one wrong, and where you end up may be federal prison.

Where you can and cannot carry a concealed firearm is the subject of some serious debates. As quickly as one interesting question is answered, another pops up. Many questions are very fact specific, and require the attention of an attorney. Others are easier to address. We will only discuss specific places in this post; places, facilities, buildings, and the like. We’ll address carrying a gun in a car, truck, motorcycle, or bicycle in another post.

So where cant you carry your concealed firearm with your License to Carry a Concealed Weapon or Firearm? We’ll start with some assumptions. 1) You have your license to carry, and you’ll need it to go here. 2) You are already complying with federal and state laws concerning your license. 3) You need to be somewhere.

If you have a License to Carry a Concealed Weapon or Firearm, life is pretty good. You don't need to worry about where you can go, if the place isn't on the list of prohibited places, you are free to carry concealed.

You can’t carry your gun in an airport passenger terminal. I get a lot of questions on this issue, and some people get argumentative about it. They mistake the passenger terminal for the “sterile” terminal. They are not the same. There are places you can walk in the passenger terminal without going through TSA’s security booth. These places are still part of the passenger terminal and carrying a concealed weapon can get you in big trouble.

If you have a firearm in an airport, it better be unloaded, in a TSA approved container and ready to be declared. We’ll cover air travel in another post. Until then, if you’re not declaring the weapon with the airline when you check in for your departing flight, you have no business having the weapon. Stop. Turn around. Leave the building immediately. Go back to your car and secure the weapon in your car. Now return as your blood resumes natural circulation.

The only time you can have a concealed firearm on your person at the airport is when you are in your vehicle, and then you had better be Buckled-up. So if you only have a motorcycle and you need to pick up a friend, either leave the gun at home or call a taxi. If you need to drive up to the airport to drop off a friend or loved one for a departing flight, and you are wearing a concealed firearm, you will be hugging and kissing and saying your goodbye’s in the car and keeping your butt in your seat. You will be rude by not assisting them with their luggage. The price you pay.

No concealed firearms in the airport. Clear enough? If you forget and get caught, call your lawyer and pray the TSA doesn't prosecute you in Federal Court.

So, where else can’t we carry?

Anyplace federal law prohibits it.

A bar, or portion of a restaurant that serves alcohol for consumption. If you go to TGI Friday’s, you can sit in the dining area and eat, but if you have to walk through the bar area to get to the restroom, you may want to “hold it” until you get home. You can’t be in the bar area with a concealed firearm. If you have a kid and the kid has a tendancy to run around, stay out of restaurants with bars. I hear Perkin's is nice this time of year.

Where else can't you carry your gun?

Post office.

Social Security Building.

IRS Building.

Polling place (anywhere you vote).

Any federal building prohibiting firearms.

Courthouse / Courtroom.

Jail / Prison / Detention Facility.

Police Station – or any Law Enforcement or Peace Officer’s facility.

On school grounds, or in a school’s facility or within 1000 feet of any elementary, middle or secondary school during school hours or during a school sponsored event, School bus stop, School sponsored event. For specific questions, ask your attorney.

Any athletic event where students are competing.

Any athletic event where athletes are paid to compete. This includes the Dolphins, the athletes need to be paid to play, no requirement that they actually win.

Any government facility where a meeting of a county commission, city council, school board, water management, or special district is taking place.

Any meeting of the state legislature, its committees or subcommittees.

Speaking of whores, you can’t be in a place of nuisance. This includes a house of drugs (crack house), house of prostitution (whore house), or house of illegal gambling. Then again, you shouldn’t be in one of those places anyhow.

So what about all of those businesses that have signs that say “Firearms Prohibited”? Sometimes they illustrate it with the picture of a gun and a circle with a slash through it. Like the Ghostbuster’s logo. Who you gonna call? Uhem! Anyway. Okay, so you see that pesky sign. What do you do now?

It’s pretty simple. You are carrying a concealed weapon so no one will even know you have a gun. It’s a public place and you are an invitee. No, you may not feel like an invitee, but take my word for it, you are. Go on in. Take care of business. Now if you do something foolish and someone catches on that you have a gun, they can ask you to leave, and you must vacate immediately. Do not stand around arguing, you will lose. You can be cited or arrested for armed trespass if someone simply asks you to leave and you fail or refuse to leave promptly. This means without cashing out. Just leave.

How about a bank? Yes, generally. What if it's FDIC insured? Then both you and your money are safe in there. Feel free to carry concealed in the bank. There are some exceptions. If the bank is in a federal building, it’s a no-no. If the bank is owned by the federal government and federal law prohibits it, don’t try it. But if it’s your average, everyday commercial bank next to the Publix or by your doctor's office? Your fine.

In all cases, just remember that you have a License to Carry a Concealed Weapon or Firearm and it means just that. It must be kept concealed. If not, all bets are off!

Florida is a Preemption State

Florida is a Preemption state. This means that the Florida legislature decided, and the Governor agreed, that Florida has only one set of laws concerning where you can and cannot carry a concealed firearm. Therefore, it is up to the Legislature to decide where you cannot carry a firearm.

Like the United States of America, Florida is a sovereign state, and not a political subdivision of the Federal Government. Florida’s counties, cities, and special districts (mosquito control, fire control, school boards) are mere political subdivisions. Once the Florida Legislature enacted Section 790.33, Florida Statutes, it took full and complete control over all Florida firearms’ law (understanding federal laws also apply), and declares county, city and other ordinances null and void. Period!

Many counties such as Lee and Hillsborough have public beaches and parks with signs prohibiting firearms, but if you have a License to Carry a Concealed Weapon or Firearm, and you follow state and federal laws, carrying a concealed firearm on a public beach is legal.

Problem is, our County elected officials, and their County Attorney’s Offices may not understand, or want to acknowledge this. Another problem is law enforcement. Should a citizen need to use a firearm to legally defend herself on a beach or in a park, the law enforcement officer may arrest her because of the sign alone, or due to the ordinance that put it there. The law enforcement officer may not have read Section 790.33, Florida Statutes.

Remember, the statute says that “Any such existing ordinances are hereby declared null and void.” Read the statute, it’s pretty clear and to the point.

Welcome to the Armed Patriot

We have started this Blog to educate the public on Florida's firearms' laws. We hope that you find it informative. For specific cases, please seek the assistance of your firearms' attorney. This blog is hosted by the Law Offices of J. Patrick Buckley III and Associates, a Fort Myers, Florida law firm with a state-wide practice including all aspects of firearms' law, self-defense, use of force, and concealed carry. Our lead attorney, J. Patrick Buckley is a NRA certified instructor, firearms' instructor, and NRA Referral Attorney. He can be reached in his office at 239-278-7700.